Elliott v. Kupferman

• Decision Date: 12 April 1984
• Docket Number: No. 935,935
• Citation: 473 A.2d 960,58 Md.App. 510
• Parties: Arthur B. ELLIOTT et ux. v. Ronald KUPFERMAN, et al. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 510

58 Md.App. 510

473 A.2d 960

Arthur B. ELLIOTT et ux. v. Ronald KUPFERMAN, et al.

No. 935 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 12, 1984.

Bruce J. Gilbert, Bel Air, with whom was Lester V. Jones, Bel Air, on the brief, for appellants.

Marc Seldin Rosen, Baltimore, with whom were Read K. McCaffrey, Baltimore, and Maurice W. Baldwin, Jr., Bel Air, on the brief, for appellees.

Argued before WILNER, ALPERT and BLOOM, JJ.

WILNER, Judge.

Appellant Arthur B. Elliott was, for many years, a member of the Town of Aberdeen police force. He eventually became the chief of the town police. At some point, the Town Commissioners (appellees) decided to remove Elliott from the police force. At first, on August 24, 1981, they tried to dismiss him outright, but because the dismissal was not in conformance with the procedural requirements of the Law-Enforcement Officers' Bill of Rights (LEOBR, Md.Code Ann. art. 27, §§ 727-734D), the Circuit Court for Harford County, upon Elliott's complaint, immediately required that he be reinstated. His termination on that occasion lasted but one day. On August 26, 1981, appellees placed Elliott on administrative leave (with pay) and filed charges against him under LEOBR. Before those charges were heard by an LEOBR hearing board, however, Elliott's two-year term as police chief expired, and he was not reappointed. That effectively terminated his status and employment.

Elliott and his wife sued appellees in the Circuit Court for Harford County. After some earlier pleading battles, the case ultimately was decided upon their second amended declaration which comprises seven counts, as follows:

Count I purports to allege an action under 42 U.S.C. § 1983. Elliott avers therein that by virtue of the procedural safeguards embodied in LEOBR he had a "property interest in his continued employment with the Aberdeen Police Department, said property interest being secured and guaranteed by the Constitution of the United States and the due process and equal protection requirements therein." He alleges that appellees, under color of State law, transgressed upon that property interest by:

(1) conducting an investigation, "the purpose of which was to gather information critical of [Elliott] in an attempt to initiate disciplinary action against [him] or to secure his demotion or dismissal from the Aberdeen Police Department";

(2) failing to meet "certain procedural safeguards," under LEOBR, specifically: (a) failing to inform Elliott of the name, rank, and command of the officer in charge of the investigation, as required by art. 27, § 728(b)(3); (b) failing to inform him in writing "of the nature of the investigation prior to his interrogation," as required by art. 27, § 728(b)(4); and (c) terminating him on August 24, 1981 without giving notice of his entitlement to a hearing, in violation of art. 27, § 730(a);

(3) thereafter filing charges against Elliott, including accusations of the commission of a criminal offense, "said charges being motivated purely by political considerations"; and

(4) failing to provide a trial board before which Elliott could defend these charges.

All of this, he claimed, caused serious injury to his self-esteem, professional reputation, and marital tranquility. As recompense, he asked $500,000 compensatory and $2,000,000 punitive damages.

Count II is for abuse of process, although it does not indicate precisely the type of process that was allegedly abused. Elliott claims that appellees "caused to be issued process" against him "for the sole purpose of harassing, embarrassing, and humiliating [him] in hopes of forcing his resignation from his position as Chief of the Aberdeen Police Department," that their acts "were malicious and done without just cause, illegal, oppressive and done with a wanton disregard for [Elliott's] rights...."

Count III asserts an action for defamation. Excess verbiage aside, Elliott alleges that appellees "did maliciously cause to be prepared and composed certain interdepartmental charges of misconduct," including one that involved a criminal offense, that "these defamatory matters were known to the Defendants to be untrue or should have been known to be untrue," and that they nevertheless with malice "knowingly, wantonly, and recklessly caused these defamatory allegations to be published and communicated to the community at large." He avers that he had previously enjoyed an excellent reputation for integrity, moral conduct, and proper activities as a police officer, and that the appellees' actions "were meant and intended to hold [Elliott] up to public scorn and ridicule and were made with actual malice and wilful intent to injure [him]."

Count IV, brought by Elliott and his wife, realleges by reference everything in Counts I through III. It asserts that appellees' failure "to prosecute allegations of misconduct on the part of [Elliott]" caused him emotional pain and suffering which affected his physical health and well-being and that, in turn, caused the plaintiffs to suffer a loss of consortium.

Counts V, VI, and VII also incorporate and reallege "all facts and matters" contained in the earlier counts. The theory of Count V is not entirely clear; we are told it was intended to charge malicious prosecution. Elliott claims therein that appellees "caused to be filed certain interdepartmental charges with the Aberdeen Police Department against [him]," that they "were solely responsible for the investigation and prosecution of said charges," that those charges "were initiated without jest [sic] cause, maliciously, and for private and improper motives," that "upon the filing of said interdepartmental charges... [Elliott] was notified to appear before an administrative trial board as provided in [LEOBR]," that the charges filed against him were then dropped and no hearing was held thereon, as appellees "knew them to be without merit and baseless...."

Count VI charges an invasion of privacy. Elliott avers that appellees caused to be published and circulated "certain allegations concerning the private and off duty activities" of Elliott that were of no legitimate concern to the public but were "of the type that would be highly offensive to a reasonable person" and were so to him. Finally, in Count VII, Elliott charges appellees with negligence in failing to "thoroughly investigate the truthfulness of the complaints against [him]" and in filing disciplinary proceedings "before determining whether there was in fact any basis therefore [sic ]." Had appellees exercised reasonable care and thoroughly investigated the charges, he avers, "they would or should have known the complaints to be baseless and without merit."

Appellees responded to this pleading with a demurrer to all seven counts and with what we take as the renewal of a motion raising preliminary objection that had been filed in June, 1982, in response to the initial declaration. On May 27, 1983, the court disposed of the second amended declaration by granting the demurrer as to Count I and the motion raising preliminary objection as to Counts II through VII. The court concluded that to the extent Count I sought to state an action under 42 U.S.C. § 1983, it was insufficient in that "no facts were shown to describe the nature and extent of [the] alleged property interest." The remaining six counts were dismissed on the basis of Md.Code Ann. art. 23A, § 1B(a), i.e., governmental immunity. The court concluded that "[r]unning the police department is a discretionary function within the scope of [appellees'] employment," and that, aside from bald allegations, appellants had failed to "set forth any facts amounting to malice."

In this appeal appellants do not challenge the procedural correctness of those rulings, i.e., whether the demurrer as to Count I was in proper form and whether the issue and underlying facts concerning appellees' immunity were properly before the court, and we shall therefore not address the procedural aspects of the court's rulings. ¹ Rather, we shall confine ourselves to the substantive issues presented by appellants: does Count I state a cause of action under 42 U.S.C. § 1983, and are appellees immune from the liability asserted under Counts II through VII?

(1) Count I--s 1983

As we indicated earlier, from all of the information given to us in the various pleadings, answers to interrogatories, briefs, and argument, it appears that appellees proceeded against Elliott in three stages: (1) on August 24, 1981, they dismissed him outright, but as the result of a proceeding filed by him in court, he was reinstated the next day; (2) he was then immediately placed on administrative leave (with pay) and at some undefined point--alleged in an answer to an interrogatory to be more than six months later--charges were filed against him under LEOBR; and (3) at some later undefined time, his term of office expired and he was not reappointed.

Unfortunately, this sequence of events is not clearly set forth in Count I, or indeed in any of the counts, of the second amended declaration. Count I, in particular, says nothing at all about a term of office or about an appointment not being renewed. Insofar as Count I is concerned, Elliott was an untenured "at will" employee. For purposes of the demurrer, we are, of course, precluded from considering anything outside of the second amended declaration itself, except to the extent that statements made to us in argument may suffice as concessions.

Section 1983 provides, in relevant part, that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law...."

It is a very broad statute, remedial in purpose. Its principal object...